By Randy Barnett, the Carmack Waterhouse Professor of
Legal Theory at Georgetown University Law Center. Professor Barnett is counsel
on an amicus brief in Heller v. District of Columbia filed by the
Academics for the Second Amendment. A condensed version of this piece was published
in the Wall Street Journal on March 18th as “Gun Rights Show Down”.
A LAYMAN’S GUIDE TO HELLER
Today, the Supreme Court will hear oral arguments in the case of Heller v. District
of Columbia, a suit brought by several DC citizens contending that the ban on
the possession of operable firearms inside one’s home violates the Second
Amendment. The Circuit Court of Appeals for DC agreed and held the ban to be
unconstitutional. However it is decided, Heller is already historic. For
the first time in recent memory, the Supreme Court will consider the original
meaning of a significant passage of the Constitution unencumbered by its own
prior decisions; and the majority and dissenting opinions in this case will be
taught in law schools for years to come. Here’s a layman’s guide the
significance of the case—and its limits.
Heller Will be Decided on Originalist Grounds. Among law professors,
enforcing the original meaning of the Constitution is highly controversial.
Critics of originalism deny that we should be ruled by the “dead hand of the
past.” They prefer following Supreme Court precedents that may or may not be
consistent with original meaning. Any justice who today professes a commitment
to originalism is branded a radical; and all Supreme Court nominees are now
grilled on their commitment to the doctrine of stare decisis. But what
are old precedents if not the “dead hand” of dead justices?
Significantly, then, both sides in Heller are making only originalist
arguments. The challengers of the law contend that the original meaning of the
Second Amendment protects an individual “right to keep and bear arms” that
“shall not be abridged.” In response, the District does not contend that this
right is outmoded and that the Second Amendment should now be reinterpreted in
light of changing social conditions. Not at all. It contends instead that,
because the original intentions of the framers of the Second Amendment was to
protect the continued existence of “a well regulated militia,” the right it
protects was limited to the militia context.
So one thing is certain. Whoever prevails, Heller will be an originalist
decision. This shows that originalism remains the proper method of identifying
the meaning of the Constitution. Heller reveals that today’s debate over
originalism is really about whether old nonoriginalist Supreme Court decisions
should supercede the Constitution’s original meaning when doing so leads to
results that nonoriginalists like better.
The Second Amendment Protects an Individual Right. In the 1960s, gun
control advocates dismissed the Second Amendment as protecting the so-called
“collective right” of states to preserve their militias—notwithstanding that,
everywhere else in the Constitution, a “right” of “the people” refers to an
individual right of persons and the Tenth Amendment expressly distinguishes
between “the people” and “the states.” Beginning in the 1980s, a deluge of
scholarship showed why the collective rights interpretation is false.
Now even the District asserts the new theory that, while this right is
individual, it is “conditioned” on a citizen being an active participant in an
organized militia. Therefore, whoever wins, Heller won’t be based on a
“collective” right of the states. This is also true of the approach advanced by
U.S. Solicitor General Paul Clement: find an individual right but then still
largely defer to the judgment of the District (which is not how the Court
protects other individual rights). Still, a ruling upholding an unconditioned
individual right to arms and invalidating the ban is unlikely to have much
affect on current gun laws. Here’s why.
Heller is a Federal Case. Because the District of Columbia is a federal
entity, Heller provides a clean application of the Second Amendment
which, like the rest of the Bill of Rights, originally applied only to the
federal government. Before a state or municipal gun law can be challenged, the
Supreme Court will have to decide that the right to keep and bear arms is also
protected by the Fourteenth Amendment, which limits state powers. This
conclusion is not forgone.
Nowadays, the Court asks whether a particular rights is “incorporated” into the
Due Process Clause of the Fourteenth Amendment, an unpopular doctrine among
some conservatives. Of course, after recognizing an unconditioned individual
right in Heller, affording it less protection from states than other
enumerated rights now receive would be awkward—especially given the
overwhelming evidence that the right to keep and bear arms was among the
“privileges or immunities of citizens” to which the Fourteenth Amendment
refers. Indeed, those who wrote the Amendment were concerned about enabling
black freeman and white Republicans in the South to protect themselves from
violence, including terrorism by local militias.
Heller Involves a Complete Ban on Operable Firearms in the Home. DC not
only bans all handguns, it makes it illegal to possess in one’s home any
operable firearm. No state has a comparable law; only scattered municipal
firearms bans would be immediately threatened. And the Court would still have
to decide how much scrutiny to give gun regulations that fall short of complete
prohibition. Furthermore, the DC gun ban is only being challenged as it applies
inside the home. So a ruling against DC would not immediately affect most laws
governing firearms in other venues.
Most Existing Gun Regulations Would Likely Be Upheld. Under current
Supreme Court doctrine, even the First Amendment rights of speech and assembly
are subject to reasonable time, place, and manner regulations. So too would gun
rights. However, because political support for the right to keep and bear arms
is so powerful, only gun laws with pretty plausible justifications actually get
enacted—e.g., laws against felons owning firearms. Therefore, even if the Court
decides to scrutinize federal and state regulations, rightly or wrongly, most
would likely be upheld.
Then Why Is Heller So Important? Although the implications of striking
down the DC gun ban are limited, a decision upholding an unqualified individual
right in Heller would still be significant. For one thing, it would be a
vindication of originalism. More importantly, the private ownership of firearms
is a hallmark of American liberty. The right to arms is so politically popular,
even Democratic candidates for president feel they must support it—albeit only
for hunters. Still, while most gun control activists now deny that they favor
banning all firearms, their strategy seem to be to incrementally achieve
prohibition by a series of statutes and tort suits that raise the costs of gun
ownership and undermine the feasibility of using guns in self defense. Once the
Supreme Court recognizes an individual right, lower court challenges to
pretextual regulations that may not currently be brought may well be allowed.
But gun rights supporters should also be careful what they wish for. While a
Supreme Court decision favoring gun rights in Heller might induce more
legislative caution before enacting gun laws, it could also allow legislators
to shift responsibility for assessing constitutionality to the courts. And
supporters of the gun rights groups that have so effectively protected the
right to arms might become apathetic thinking the courts would protect them.
Now that Heller is before the Court, however, these risks are worth running. To
shrink from enforcing a clear mandate of the Constitution—as, sadly, the
Supreme Court has often done in the past—would create a new precedent that
would be far more dangerous to liberty than any weapon in the hands of a
citizen.